Yelp: Challenging The 'unmasking' Order For Anonymous Reviewers

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On February 6, Yelp filed an appeal to the Virginia Supreme Court challenging an order to provide information about the authors of allegedly defamatory reviews. The case, Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., is one of many in recent years that are forcing the courts to balance the First Amendment rights of anonymous online reviewers against the right of businesses to pursue defamation claims.

Yelp v. Hadeed concerns a set of negative reviews on Yelp that Hadeed believes were not authored by real customers. Hadeed filed a complaint in July 2012, and then subpoenaed Yelp to produce documents containing the “full name, gender, birth date, IP address, or email address” of the authors of the reviews in question. In seeking to compel Yelp to produce the documents, Hadeed invoked a Virginia “unmasking” statute that addresses anonymous communications that “may be tortious or illegal.”

After Yelp refused to comply, a circuit court in Alexandria held Yelp in contempt. Yelp then appealed to the Court of Appeals of Virginia, which affirmed the circuit court’s decision in January 2014. With its February 6 filing, Yelp has now asked the Virginia Supreme Court to weigh in.

Yelp v Hadeed, like other cases concerning allegedly defamatory anonymous online postings, involves the tension between the rights and limitations of the First Amendment. The First Amendment right to freedom of expression extends to anonymous expression. “Under our Constitution,” wrote the Supreme Court in 1995, “anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority.” However, the right to freedom of expression—anonymous or otherwise—has limits. For example, speech that is defamatory can fall outside the scope of First Amendment protection.

In the context of online reviews, this poses obvious challenges. On the one hand, unmasking anonymous reviewers violates their First Amendment rights if it turns out that the reviews were genuine and accurate. On the other hand, it would be unfair to leave businesses with no recourse when they are targeted by reviews they know to be false.

Courts trying to find the right balance have generated a growing body of case law, much of it influenced by the 2001 Dendrite ruling from a New Jersey appellate court. That ruling laid out a specific multistep process for determining when to compel disclosure of “the identity of anonymous Internet posters who are sued for allegedly violating the rights of individuals, corporations, or businesses.”

In subsequent years, the standards from Dendrite or from the closely related 2005 Cahill decision in Delaware were fully or partially adopted by courts grappling with anonymous Internet defamation lawsuits in a number of other states. Courts in those cases recognized the need to explicitly or implicitly balance, as the Dendrite court explained it, “the defendant’s First Amendment right of anonymous free speech” against the strength of the case and the “necessity for the disclosure of the anonymous defendant’s identity to allow the plaintiff to properly proceed.”

However, while state court decisions may provide guidance for other states, they are not binding. In the January decision that Yelp has appealed, a court in Virginia declined to adopt the standards from Dendrite or Cahill, writing, “There is no need for us to adopt persuasive authority from other states.” Instead, the court noted, Virginia has its own statutory unmasking standard. The court considered that standard, “decline[d] to declare” it unconstitutional, and concluded that Yelp does indeed have to provide the information sought by Hadeed.

Yelp, of course, views things differently. In its petition for appeal, the company argues that if “a company is able to identify its critics by doing no more than representing that it believes that its critics are not customers, consumers and others who have valuable contributions to make to public debate, but who worry about retaliation, will be chilled into silence.” Virginia’s unmasking statute, Yelp writes, should not be the only consideration: “When a court decides that the Constitution provides protection even though the state statute does not, the court need not decide that the state statute is unconstitutional . . . So, here, a court can find that the First Amendment affords protection against a subpoena even though [Virginia's unmasking statute] does not.”

In addressing the appeal, the Virginia Supreme Court doesn’t have the power to alter the Virginia statute. It can, however, consider the many court decisions in unmasking cases in other states that have issued since that statue was enacted over a decade ago. Most of those decisions reflect First Amendment interpretations that are more protective than the Virginia statute of anonymous online reviewers. Whether the Virginia Supreme Court will take a similar view of the scope of First Amendment protections remains to be seen.

Finally, it’s also worth noting that as a private business, Yelp is not obligated to provide a platform giving reviewers the full range of freedoms conferred by the First Amendment. In some ways, the company does in fact restrict speech in ways that the First Amendment does not. Its current Terms of Service, for instance, prohibit users of the site from sending “bulk emails, surveys, or other mass messaging.” Thus, Yelp’s choice to fight on behalf of its reviewers in the courts is in part a principled defense of the First Amendment right to anonymous expression. But it is also a sound business decision that will help keep it in good standing with the reviewers who constitute its biggest asset.

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